Mr. President, Mr. Speaker, and Members of the
Hawaii State Legislature of 2003:

In accordance with Section 96-16, Hawaii Revised Statutes, I am pleased to submit the report of the Office of the Ombudsman for fiscal year 2001-2002. This is the thirty-third annual report since the establishment of the office in 1969.

The Office of the Ombudsman is committed to its role as a link between the people and their government. We hope that our efforts to promote the fair and impartial administration of government through the independent and impartial investigation of citizen complaints help to restore the public’s trust and confidence in government.

I would like to take this opportunity to thank the Governor, the Mayors of the various counties, and the State and County department heads and employees for their ongoing cooperation and assistance in our efforts to resolve citizen complaints and concerns.

I would also like to personally thank First Assistant Donna Woo and the other professional and support staff members of the Office of the Ombudsman for their continued commitment and dedication to the office and its mission.

During fiscal year 2001-2002, the office received a total of 5,638 inquiries. 4,024 of these inquiries, or approximately 71 percent, may be classified as complaints within the jurisdiction of the office. The remaining inquiries consisted of 1,121 requests for information and 493 non‑jurisdictional complaints.

The 5,638 inquiries received during fiscal year 2001-2002 represent a slight decrease from the 5,880 inquiries received the previous fiscal year. The number of jurisdictional complaints received also decreased slightly.

A comparison of inquiries received in fiscal year 2000-2001 and fiscal year 2001-2002 is presented in the accompanying table.

In May 2002, Yvonne Faria joined the office as an analyst. Ms. Faria graduated cum laude and was valedictorian of her graduating class at Hawaii Pacific University. She was last employed as a legislative assistant with the Hawaii Insurers Council and brings with her over 10 years of experience in the legislative field. The addition of Ms. Faria completes our staff allotment and should help reduce each analyst’s caseload to a more manageable level, enabling the office to respond to inquiries and complaints in a more timely and thorough manner.

In March 2002, Alfred Itamura celebrated 20 years of service in the office. Mr. Itamura began his career as an associate analyst under Herman Doi, Hawaii’s first Ombudsman, shortly after obtaining his Master of Arts in Political Science from the University of Hawaii at Manoa in 1981. He is now one of the senior members of our staff and a source of valuable institutional knowledge for the office. We thank Mr. Itamura for his many years of commitment and dedicated service to this office.

In continuation of our efforts to educate the public on the function of the office, we presented our educational exhibit booth at three events during the 2001-2002 fiscal year. The overwhelming response to our booth at the American Association of Retired Persons (AARP) Senior Fair in September encouraged us to take part in the 2001 Food and New Products Show in October and the Spring New Products Show in April 2002. With the large number of people expected to attend the shows, we felt these events would logically provide us the greatest exposure. The staff voluntarily manned our booth and did an outstanding job of providing the public with information on the office.

In fiscal year 2001-2002, we received invitations from two community groups to speak to their members on the purpose and function of the Ombudsman’s Office. In August 2001, the Ombudsman participated in a lively discussion with members of the Waianae Coast AARP at their monthly meeting. In November 2001, the Ombudsman visited the beautiful Hawaii Kai Retirement Community and acquainted the residents with the office and the services we provide.

On June 28, 2002, Ombudsman Robin Matsunaga and First Assistant Donna Woo participated in a conference on “Government Watchdogs in Hawaii: Making Government Accountable,” initiated and hosted by Hawaii County Mayor Harry Kim. The conference was the first such meeting of state and county offices to “talk story” and share ideas, and provided an opportunity for exchange among the 50 participants on who each of us is, what each of us does, common concerns that we share, and how we can work together to better serve the public. Among the participants were Moya Davenport Gray, Director of the Office of Information Practices; Constance Kiriu, Legislative Auditor of the County of Hawaii; Dan Mollway, Executive Director of the State Ethics Commission; Gerald Sekiya, Chair of the Commission on Judicial Conduct; Charles Totto, Executive Director of the City and County of Honolulu Ethics Commission; and Bob Watada, Executive Director of the State Campaign Spending Commission.

During the past year, the office continued its active role in the United States Ombudsman Association (USOA). The USOA is the nation’s oldest and largest organization of ombudsmen working in government to address citizen complaints. USOA’s membership includes practicing ombudsmen at all levels of government, some of whom have general jurisdiction, and others who have jurisdiction over a specified subject matter or agency.

Ombudsman Robin Matsunaga is completing his second two-year term on the USOA Board of Directors and his second year as president of the organization. Under his presidency, Mr. Matsunaga has provided the Board and membership with a long-term vision for the USOA and his thoughts of where the USOA should direct its resources. Mr. Matsunaga is working with the Board to develop a sound long-term strategic plan for the USOA and exploring ways to generate the resources necessary to implement that plan.

The office submitted a proposal to the USOA and was selected to host the USOA’s annual conference in 2003.

Information requests are queries for which we provide a response or referral, such as to another government agency or a private entity.

There are two types of complaints–jurisdictionaland non-jurisdictional. A jurisdictional complaint is one that our office is authorized to investigate. Conversely, a non-jurisdictional complaint is one that our office does not have authority to investigate. In non-jurisdictional complaints, we refer complainants to agencies that we believe may be able to help them.

Disposition of Jurisdictional Complaints

Jurisdictional complaints are disposed of in different ways, depending on the nature and circumstances of the complaint, and/or the result of our investigation.

A declined complaint is one in which a complainant is referred to an alternative process. For example, if the complaint is about the conduct of a police officer, we advise the complainant to file a complaint with the police commission; if an inmate has a complaint that is not urgent, we advise the inmate to utilize the grievance procedure. The complainant is invited to call us back if the complaint is not resolved through the alternative process.

A declined complaint also occurs when it is determined that the complaint is not timely or is trivial, frivolous or vexatious, or when the complainant has no personal interest or does not permit us to reveal his or her identity when the situation requires. Other reasons we decline to investigate a complaint are when we lack sufficient resources or expertise or the complaint lacks merit on initial consideration.

An assisted complaint is one in which we contact an agency on behalf of a complainant and inform the agency of the nature of the complaint and request the agency to aid the complainant directly. There is no investigation by our office.

A discontinued complaint is one in which after the filing of a complaint, the complainant decides voluntarily to withdraw the complaint or fails to submit additional information that is required to properly investigate the complaint, or no further action is required because the complaint is resolved.

A completed investigation is one in which we conduct a full investigation and arrive at a finding that a complaint is either substantiated or not substantiated.

A substantiated complaint is one that we found fully or partially in favor of the complainant. When a complaint is substantiated, it is either rectified or not rectified. A complaint is rectified when the agency complies with our recommendation that the desired remedy be provided the complainant and/or action is taken to prevent similar problems from arising in the future. A complaint is not rectified when the agency does not adopt our recommendation or when we are unable to make a recommendation because no resolution is possible.

A complaint is not substantiated when we find that the agency’s actions are in accordance with the law and/or are appropriate and reasonable or when the complainant’s allegations could not be proven.

The following are summaries of selected cases investigated by the office. Each case summary is listed under the State government department or the county government involved in the complaint or inquiry. Although some cases involved more than one department or involved both the State and the county, each summary is placed under what we believe to be the most appropriate organization.

Outdated recorded message about age requirement for driving instruction permit

DEPARTMENT OF ACCOUNTING AND GENERAL SERVICES

(01-5260) Required to pay school bus fare. A welfare recipient who lived on Maui complained that her children were required to pay student bus fare of 15 cents per ride to and from school, even though the welfare system subsidized the private bus company that was contracted to transport the students. The complainant believed that the welfare system paid the bus company a transportation subsidy for her children, so questioned why her children were still required to pay bus fare.

According to the administrative rules of the Department of Education (DOE), a student of a family receiving welfare assistance may ride the school bus for free if the student resides a mile or more from school, rides the bus everyday, and attends the school in the school district in which the student lives. If a student did not meet all of the criteria, he or she might still be allowed to ride the school bus if there were vacant seats on the bus, but would be required to pay bus fare. The rules established the school bus fare at 25 cents per ride.

We inquired with the welfare office as to whether it paid a bus transportation subsidy for students whose families received welfare assistance. The welfare office informed us that it did not pay such a subsidy.

We then inquired with the school that the complainant’s children attended. We learned that in accordance with the DOE rules, the complainant’s children were required to pay bus fare because they did not live in the school’s district. We also learned that the reason the complainant’s children were charged 15 cents per ride rather than 25 cents was because the County of Maui contributed a payment of 10 cents per ride. Thus, the complainant’s children were required to pay only the remaining 15 cents per ride.

(02-1085) Bail money as payment for child support. A woman initially contacted our office to obtain information. She was separated from her husband, who had been arrested twice and had posted $1000 in bail for the first arrest and $2000 for the second. Subsequently, the charges against him were dropped. The woman wanted to know whether the bail money could be paid to her as child support because her husband was behind in his child support payments. She said that her husband was no longer living in Hawaii and had left the country because he owed child support.

We inquired with the Honolulu Police Department (HPD) and were informed that a person who posts bail is issued a receipt in the amount of the bail. If the charges are dropped, the person must show the court the receipt and a photo identification to have the money returned. The money belongs to the person who posted the bail.

When we contacted the court, we learned that it did not have the husband’s bail money. The court informed us that the charges were not filed properly, so the case was never brought to court and the money was held at the police station.

We then inquired further with the police. We were informed that if the money is unclaimed for six months, it is sent to the City and County of Honolulu Treasury Office, which begins the process to deposit the money in the general fund.

When we contacted the caller with the above information, she asked if the Child Support Enforcement Agency (CSEA) could file a child support lien against the bail money. A CSEA employee informed her that its legal department would consider such action. We asked her to give CSEA an opportunity to research the issue and told her that she could contact us later if CSEA took no action.

A month‑and‑a‑half later, the woman contacted us as she had not heard from CSEA

We inquired with CSEA and learned that although it placed a lien on the bail money, HPD was not willing to release the money to CSEA without a court order. The husband would be entitled to a hearing and CSEA would need to serve notice on the husband, which it anticipated would be difficult since he lived in another country and had on previous occasions ignored letters sent to him by CSEA via registered mail.

In the meantime, the State Legislature enacted Act 95, Session Laws of Hawaii 2001, which allowed CSEA to obtain the release of certain funds without legal process. In this case, under the new law, CSEA only needed to send a notice of the lien to HPD, and HPD would be able to release the bail money to CSEA.

Subsequently, CSEA sent HPD the notice of the lien, HPD sent the $3000 to CSEA, and CSEA issued a check to the complainant.

(01-1073) Delivery of foods and supplies to school. A neighbor island resident complained that the Department of Education (DOE) contracted services for the delivery of foods and supplies to schools on the island in an arbitrary manner. The complainant felt that the selection of a trucking contractor was based on favoritism rather than by formal or informal bidding.

In our investigation, we found that the vendors that provided foods and supplies to the schools on the island were only required to deliver the commodities to a commercial pier on the island. The DOE then made arrangements for the delivery of the commodities to the schools or to a storage site. For delivery purposes, the commodities were divided into two basic categories: refrigerated items and non-refrigerated items.

Some years ago, a delivery service contract was awarded to a licensed trucking company through the bidding process. When the contract expired, because no other licensed trucking company expressed interest in delivering foodstuffs, the trucking company agreed to continue to provide delivery services to the schools for the same price. Thereafter, another trucking company began providing delivery services, and as a result, the schools had the option to select either of the two trucking companies.

The DOE at one time had published an invitation for bids for the delivery of refrigerated items. However, there were no qualified bidders as none of the trucking companies on the island had refrigerated trucks. The DOE resorted to allowing a trucking company to use thermal blankets to cover refrigerated items during transport.

The DOE agreed that arrangements for delivery service had to be done in a more systematic manner, and we monitored its efforts. Eventually, a trucking company purchased a refrigerated truck and the DOE entered into a “sole source” contract with this company to transport refrigerated items.

Subsequently, after another trucking company purchased a refrigerated truck and upon expiration of the sole source contract, the DOE solicited bids to provide delivery services of frozen and chilled food items.

The DOE also published an Invitation for Bids to provide delivery services on the island for “Non-Refrigerated Commodities of Foods and Supplies.”

(02-0989) Eligibility for financial assistance and food stamps. A man applied for financial assistance and food stamps. He was deemed eligible for food stamps but was denied financial assistance for failing to identify a third party that may have been liable for services covered under the Medicaid program. The man, who was injured on a church outing, was advised to submit proof of the church’s liability insurance and to reapply for financial assistance, which he did. While awaiting action on his financial assistance reapplication, his food stamps were terminated because he failed to submit a timely monthly eligibility report form (MERF).

The man explained that his MERF was untimely because he was hospitalized at the time the MERF was due. A Notice of Adverse Action terminating his food stamps was sent to his home address and no further action was taken on the financial assistance reapplication. The complainant was unaware that his food stamps were terminated until after he was discharged from the hospital quite a while later. He submitted documents to verify his medical problems and that he was in the hospital. Thereafter, when he inquired with his welfare worker, he was told that he had to once again reapply for food stamps and financial assistance.

The man complained to us that any further delay in processing his applications would extend his hardship because he was in dire need of assistance. He informed us that his case had been handled by two different workers.

When we contacted the man’s current worker, she confirmed having received proof of the man’s hospital stay and of his church’s liability insurance, but she did not realize why the man submitted these documents. The worker stated that had she known he was in the hospital, she would not have terminated his food stamps and she would have processed his financial assistance application.

After our inquiry prompted her review of the case, the worker reinstated the man’s food stamps back to the date of termination and deemed him eligible for retroactive financial assistance to the date the proof of liability insurance was received.

(02-1937) Removal of misleading sign. A man complained that he was rudely treated by a State employee when he visited what he thought was the office of the State Foundation on Culture and the Arts. When he arrived at the office, he discovered that the Foundation had moved and a welfare applications unit now occupied the office. When he asked the welfare worker for the Foundation’s new address, the worker was allegedly very rude, unhelpful, and refused to allow him to use a telephone.

We reported the complaint to the welfare unit supervisor. She spoke with the worker in question, but was unable to substantiate the rude conduct allegation. However, in the course of our discussion with the supervisor, we learned that a sign with the Foundation’s name was still affixed to the outside wall of the building, which would mislead the public to believe that the Foundation was still located inside.

We contacted the Foundation and learned that it relocated several months ago. The Foundation, unaware that its sign was still at the former location, subsequently made arrangements to have it removed.

(00-0601) Untimely request for review of billing dispute. Under the State’s workers’ compensation law, an employer is responsible for the medical expenses incurred by an employee due to a work-related injury under most circumstances. If there is a billing dispute between an employer and a health care provider, either party may ask the Department of Labor and Industrial Relations (DLIR), which administers the workers’ compensation program, to intervene and review the dispute.

A doctor complained that while the DLIR started the intervention process based on his initial request, it denied his subsequent request for review because he allegedly failed to submit the request by the filing deadline. The doctor had attempted to resolve the matter himself and we did not receive his complaint until two years after the DLIR’s denial of his request.

In the event a reasonable disagreement relating to specific charges cannot be resolved, the employer or provider of service may request intervention by the director in writing with notice to the other party. Both the front page of the billing dispute request and the envelope in which the request is mailed shall be clearly identified as a “BILLING DISPUTE REQUEST” in capital letters and in no less than ten point type. Upon receipt of a notice from the director, the parties shall negotiate for an additional thirty-one calendar days. If the parties fail to come to an agreement during this additional thirty-one calendar days, then within fourteen calendar days after the thirty-one day negotiating period, either party may request, in writing, the director to review the dispute with notice to the other party. . . . (Emphasis added.)

According to this rule, an employer or health care provider may request that the DLIR intervene when there is a billing dispute. Upon receipt of a notice from the DLIR, the parties are required to negotiate for 31 calendar days to settle the dispute. If the parties fail to come to an agreement, either party has 14 calendar days after the end of the 31‑day negotiation period to ask the DLIR to review the dispute.

In our investigation, we found that in response to the complainant’s request for intervention, the DLIR sent a notice dated May 6 to both parties to advise them that a billing dispute request was filed and that they had 31 calendar days (until June 6) to negotiate and thereafter 14 calendar days (until June 20) to request that the DLIR review the dispute. Both parties were further advised that if the DLIR did not receive a request for review within 14 calendar days after the 31‑day negotiation period, the DLIR would presume that the dispute was resolved and would take no further action. When negotiations failed, the complainant mailed a letter on June 19, one day before the 14‑day deadline of June 20, requesting that the DLIR review the dispute. However, the DLIR denied the request because the request was received on June 24, and therefore was deemed to be untimely filed.

Correspondence between the DLIR and our office ensued. We asked the DLIR to consider reviewing the billing dispute because the DLIR’s practice of using the date of its notice as the start of the 31‑day negotiation period was not in compliance with its own rule, which stated that the parties shall negotiate for 31 calendar days upon receipt of the notice from the director. If the total 45‑day period (31 days plus 14 days) were to start when the parties received the DLIR’s notice, the deadline for filing the request for the DLIR’s review of a dispute would be moved back, and the complainant’s June 24 request may have been filed before the revised deadline.

In addition, the rule was unclear as to when the request for the DLIR’s review would be considered to have been filed. We noted that the DLIR’s practice was that such a request would be considered filed upon its date and time stamping in the DLIR office, whereas for other reports, the DLIR considered the postmark as the date of filing.

The director of the DLIR declined to review the billing dispute between the complainant and the employer as “it would be difficult to determine when either party received the May 7 . . . letter from the department.” If the parties’ receipt date of the notice could not be determined, the deadline to request the DLIR’s review likewise could not be determined. The director further explained that “I do not feel it would be fair to give ‘the benefit of the doubt’ to one party and grant a request for review.” By this time, over four years had transpired since the billing dispute, and we accepted the director’s response.

The DLIR, however, acknowledged that the rule was ambiguous and needed to be clarified. Subsequently, the DLIR amended the rule to read in part, as follows:

In the event a reasonable disagreement relating to specific charges cannot be resolved, the employer or provider of service may request intervention by the director in writing with notice to the other party. Both the front page of the billing dispute request and the envelope in which the request is mailed shall be clearly identified as a “BILLING DISPUTE REQUEST” in capital letters and in no less than ten point type. The director shall send the parties a notice and the parties shall negotiate during the thirty‑one calendar days following the date of the notice from the director. If the parties fail to come to an agreement during the thirty‑one calendar days, then within fourteen calendar days following the thirty-one day negotiating period, either party may file a request, in writing, to the director to review the dispute with notice to the other party. . . . (Emphasis added.)

Section 12‑1‑2, HAR, provided that all documents required to be filed with the DLIR shall be filed in the office of the director or other designated office within the prescribed time limit. This section, in conjunction with the amended rule, clarified that the request for review must be filed in the director’s office (not postmarked) within 14 days following the 31‑day negotiation period.

While the complainant did not personally benefit from the amended rule, he was pleased that his complaint resulted in some positive change.

(02-0142) Denied request for unemployment benefits appeal hearing on Molokai. The rules governing hearings conducted on unemployment benefits appeals called for holding a single hearing, with all parties appearing at the hearing, whenever possible. When one or more of the parties are out of the State or when the parties are in different intrastate locations, appearances by the parties may be by telephone.

An employer on Molokai complained that the Employment Security Appeals Office (ESAO) scheduled a hearing on her unemployment benefits appeal on Maui. The hearing was to be conducted by three-way telephone call from Maui because the claimant (the former employee) had moved to Oregon. The employer requested that the hearing be conducted on Molokai, so that she could attend the hearing in person. However, an ESAO staff member informed her that the hearing must be conducted from Maui.

Appeals, filing, and hearing. (a) The claimant or any other party entitled to notice of a determination or redetermination as herein provided may file an appeal from the determination or redetermination at the office of the department in the county in which the claimant resides or in the county in which the claimant was last employed . . . .

(b) The appeal under subsection (a) shall be heard in the county in which the appeal is filed . . . . (Emphasis added.)

As the County of Maui includes the island of Molokai, the employer’s filing of the appeal at the unemployment office on Molokai was in accordance with the law, and the appeal could be heard on either Maui or Molokai.

Since the only ESAO office was in Honolulu, a hearings officer would need to travel to Maui or Molokai to hear the employer’s appeal. As the employer was on Molokai, we inquired with the ESAO chief referee about holding the hearing on Molokai. The chief referee informed us that the hearing could be held on Molokai, but she was concerned that the equipment and facilities needed to conduct a conference telephone call would not be available on Molokai. We inquired with the Molokai Unemployment Insurance Division office and learned that the necessary equipment and facilities for a telephone hearing were available. After we provided this information to the chief referee, the appeal was scheduled to be heard on Molokai.

(02-1938) Notice of board meeting on the Internet. A Big Island resident complained on November 6, 2001 that the Board of Land and Natural Resources (BLNR) had not posted information to notify the public of a BLNR meeting scheduled for November 16 in Kona. He was able to confirm with the BLNR office in Hilo that a meeting would be held on November 16 in Kona, but was told that notice of the meeting would not be posted on the BLNR Internet site until the meeting agenda was set. The complainant believed that the lack of notice on the Internet was a violation of the State’s “Sunshine Law.”

We reviewed Chapter 92, Hawaii Revised Statutes, titled “Public Agency Meetings and Records,” which is commonly referred to as the “Sunshine Law.” The law required a board to give written public notice of any regular, special, or rescheduled meeting or any executive meeting that is anticipated in advance. The written notice must include an agenda listing all items to be considered at the meeting, as well as the date, time, and place of the meeting, and the purpose of the meeting in the case of an executive meeting. The notice must be filed in the office of the Lieutenant Governor (LG) or the appropriate county clerk, and in the board’s office, at least six calendar days before the meeting. The notice shall also be posted at the meeting site whenever feasible. The law did not require that the notice be posted on the Internet.

We contacted the BLNR office in Hilo, which confirmed that a meeting was scheduled for November 16 in Kona. The office informed us that the filing of the written notice in the LG’s office and the posting of the notice on the Internet are done by the BLNR Chairperson’s office in Honolulu.

On November 8, we contacted the Chairperson’s office, which informed us that the notice for the November 16 meeting had not yet been filed because the meeting agenda was not finalized. The office noted the requirement was that the notice be filed in the LG’s office at least six calendar days prior to the meeting and assured us that the agenda would be completed and the notice filed the next day, which was seven calendar days prior to the meeting. Although it was not required, the notice would also be posted on the Internet, on the same day that it was filed with the LG’s office.

We informed the complainant of the Sunshine Law requirements with regard to the filing of the notice of a board meeting. We also informed him that the law did not require the BLNR to post notice of its meetings on the Internet, but that it was the BLNR practice to do so. The complainant was satisfied with this information.

We subsequently verified the posting of the notice and the agenda of the November 16 meeting on the Internet.

(01-2344) Unable to exercise right to vote. An inmate at a correctional facility complained that he was unable to vote in the 2000 General Election because he did not receive the absentee ballot that he requested. He was a registered voter and said he completed an application for an absentee ballot, which the facility staff was to have mailed to the Office of the City Clerk. Since the election was over, a remedy for the complainant was not possible, but we investigated the complaint to determine if a systemic problem existed.

First, we researched the question of whether inmates are eligible to vote and found that the State Constitution, Article II, “Suffrage and Elections,” Section 2, stated in part:

No person convicted of a felony shall be qualified to vote except upon the person’s final discharge or earlier as provided by law.

As authorized by the constitutional provision, Chapter 831, Hawaii Revised Statutes (HRS), “Uniform Act on Status of Convicted Persons,” allowed convicted felons to vote prior to their final discharge, if their sentences were suspended or they were on parole. Section 831‑2, HRS, stated in part:

Rights lost. (a) A person sentenced for a felony, from the time of the person’s sentence until the person’s final discharge, may not:

(1) Vote in an election, but if execution of sentence is suspended with or without the defendant being placed on probation or the defendant is paroled after commitment to imprisonment, the defendant may vote during the period of the suspension or parole; . . . (Emphasis added.)

Based on the constitutional and statutory provisions, only inmates who were serving a sentence of imprisonment for a felony conviction were disqualified from voting. Other inmates, such as those awaiting trial or sentencing, or those convicted and serving sentences for misdemeanors or petty misdemeanors, were not disqualified from voting.

In this case, the complainant was not a convicted felon but was awaiting trial, and was therefore eligible to vote. However, the Office of the City Clerk informed us that although the complainant was a registered voter, it had no record of having received his application for an absentee ballot.

We contacted the correctional facility and received conflicting information from various staff members concerning the inmate voting procedures at the facility. Additionally, there was no designated staff member in charge of implementing procedures to ensure that eligible inmates were afforded the opportunity to vote. It appeared that any applications for voter registration and absentee ballots that may have been collected for the 2000 General Election were not sent to the Office of the City Clerk.

State law provided for voter registration and application for absentee ballot by mail. The State Office of Elections and the Association of Clerks and Election Officers of Hawaii had prepared a Wikiwiki Voter Registration brochure, which contained an application for voter registration and an application to obtain an absentee ballot, with instructions for submitting both applications by mail. In Hawaiian, wikiwikimeans “fast” or “speedy.”

In our inquiry with the correctional facility, we were informed that the wikiwiki brochure had been available to inmates at the correctional facility. However, based on the uncertainty of facility staff that we encountered, it appeared that procedures and responsibilities would need to be clarified if the wikiwiki process were to be effectively used for registration and voting by eligible inmates.

We inquired with the Office of Elections, which felt that it was appropriate to use the wikiwiki process to allow eligible inmates to register to vote and to vote by absentee ballot. The Office of Elections assisted the Department of Public Safety (PSD) to ensure that the wikiwiki brochure would be available to eligible inmates and parolees. A PSD employee was designated to serve as liaison with the Office of Elections, which provided PSD a supply of wikiwiki brochures, display boards, and informational materials for distribution to all correctional facilities. The PSD liaison informed us that the informational display would be set up in facility libraries and wikiwiki brochures would be made available to inmates Statewide. The Office of Elections also assisted the Hawaii Paroling Authority in the same manner to facilitate registration and voting by parolees.

(02-0262) Use of drug detection device on visitors to a correctional facility. The parent of an inmate questioned the propriety of using an electronic drug detection device on visitors. Before she was allowed to visit her daughter, she was subjected to a procedure in which the device was swept over parts of her body, and she felt the practice was intrusive. No notice was given prior to the use of the device and those who failed the procedure were not allowed to visit.

In our investigation, we learned that the Department of Public Safety (PSD) had recently introduced at several facilities the use of a highly sensitive device that was able to electronically detect the presence of different types of drugs in minute quantities. Drug particles were collected by rubbing cloth swabs over hands, outer clothing, possessions, and other surfaces. The cloth swabs were attached to a wand or held by personnel wearing latex gloves. The visitor being scanned was not required to remove any clothing. If test results were positive, the visitor had the option of undergoing a more thorough search. If the visitor refused to be searched, the visitor was denied visitation. Thus, the electronic device was used as a screening tool to determine whether a more detailed, hands-on search was necessary.

We found that there were no written policies or procedures governing the use of the electronic drug detection device, since its use by the facilities was recent. However, the PSD had a general policy on searches of visitors, as well as staff. Policy No. Cor. 08.02 states in part:

The control of contraband into a correctional institution is a basic element in establishing security and control within the institution. The Supreme Court has held that all persons have a right to be free of unreasonable searches and seizures. An unreasonable search is one that invades a person’s reasonable expectation of privacy. Where one does not have a reasonable expectation, a search is lawful. Searches in correctional institutions do not invade the reasonable expectation of privacy on the part of an inmate, visitor, or staff.

In accordance with visitation procedures, all prospective visitors are required to consent to a reasonable search, including a strip search, by signing a Notice of Consent to Search. The notice advises the visitor of the law governing searches and contains a warning that the visitor may be subjected to search at anytime, including a strip search and search of his/her vehicle and property, if there is reasonable cause.

While no notice was given to visitors of the use of the electronic device, we believed that sufficient notice was provided to visitors that they may be subjected to searches. In fact, we determined that the use of the electronic device appeared to be less intrusive than other types of searches to which an authorized visitor would have already consented.

However, we found that the subject facility was not in compliance with the electronic screening procedure. When there was a positive reading, the visitor was denied visitation. Instead, the facility was supposed to instead give the visitor the option of submitting to a more thorough search for the presence of contraband. The facility acknowledged its error and issued a memo to the security staff that if a positive reading is registered, the visitor is to be provided an opportunity to submit to a more thorough search. If the visitor refuses to submit to the search, the visit will be denied. If the visitor consents to the search and contraband is not found, he/she would be allowed to visit.

The PSD eventually promulgated specific policies and procedures to ensure that the electronic device would be used properly and uniformly by all facilities.

We advised the complainant of the PSD’s new policies and procedures and the change in practice at the facility where her daughter was incarcerated.

(02-0675) Erroneous restitution requirement. The Hawaii Penal Code provides that in its disposition of a convicted defendant, a court may order one or more of the following sentences: placement on probation, payment of restitution, payment of a fine, imprisonment, or performance of community services. If a defendant is placed on probation, the court may require as a condition of probation that the defendant pay restitution. Thus, a defendant may be required to make restitution payments by a free standing order of the court or as a condition of probation.

The Department of Public Safety (PSD) has the authority to enforce a restitution order against moneys earned by an inmate while incarcerated. Such moneys include an inmate’s earnings while participating in a work furlough program, whereby the inmate resides in a work furlough center administered by a correctional facility but is furloughed to work for an employer in the community.

A former inmate complained that he was improperly required to pay restitution. He was initially placed on probation and was required to pay restitution as a condition of probation. However, his probation was revoked and when he was resentenced to imprisonment, restitution was not part of the new sentence. After several years of incarceration, he was eventually phased into the work furlough program. While in the work furlough program, he was required by the PSD to pay restitution from his earnings.

In our investigation, we confirmed that the complainant was initially placed on probation and was required to pay restitution as a condition of probation. The court subsequently revoked the complainant’s probation and resentenced him to a period of five years of incarceration. The Order of Resentencing did not include a sentence to make restitution.

We were uncertain whether the Order of Resentencing superseded the initial judgment and sentence of the court by which the complainant was sentenced to probation with a special condition for payment of restitution. Since restitution was a condition of probation and probation was revoked, it appeared that restitution may no longer be required.

We inquired with court officials and were advised that resentencing does supersede the prior sentence and if restitution had not been ordered in the complainant’s Order of Resentencing, restitution would not be required. The court staff researched the complainant’s records and confirmed that there was no restitution order upon resentencing. Furthermore, the restitution money that was remitted by the PSD to the court on behalf of the complainant had not been forwarded to the victim because of the lack of a restitution order, and the court was awaiting instructions for the disposition of the funds.

We advised the PSD of our findings. After an administrative review, the PSD concurred that the complainant did not have a restitution obligation. It recovered the payment from the court and returned the funds to the complainant. The PSD also informed us that it would more closely review restitution obligations when an inmate is resentenced after probation is revoked.

(02-0793) Transfer of inmate funds. To facilitate an inmate’s gradual reintegration into the community, the inmate may be assigned to a work furlough program in which the inmate is employed in the community but resides in a work furlough center (WFC) administered by a correctional facility. As part of the responsibility of civilian life, the inmate pays the WFC for room and board and is expected to deposit payroll earnings into a restricted individual savings account in a private financial institution selected by the Department of Public Safety (PSD). Withdrawals from this account can only be made with the approval of the WFC staff.

An inmate complained that he was having a difficult time transferring his funds from the financial institution to the inmate trust account of the correctional facility where he was incarcerated. He was previously on work furlough and opened an individual savings account in the financial institution. After he was terminated from the work furlough program, as instructed by a WFC staff member, he wrote to the financial institution and requested that his funds be transferred to the correctional facility. However, the financial institution did not respond to his request.

In our investigation, we learned that the PSD had established a procedure with the financial institution for the transfer of funds. When an inmate is terminated from a work furlough program and is transferred to a correctional facility, the business office of the facility is supposed to transfer the funds upon request from the inmate. We also learned that the financial institution had complained to corrections officials that contrary to this procedure, it was receiving letters directly from inmates requesting that their accounts be closed and their funds be transferred.

We advised the inmate to submit a request to his facility’s business office and later verified that his funds were transferred. We also requested that the WFC administration be reminded of the transfer procedure so that correct instructions can be given to inmates who in the future are transferred from the WFC to a correctional facility.

(02-1922) Interest-bearing accounts for Hawaii inmates in mainland facilities. Due in part to overcrowded conditions in Hawaii correctional facilities and as a less costly alternative to the construction and operation of new prisons, the Department of Public Safety (PSD) contracted with private entities to house Hawaii inmates at several mainland correctional facilities. A Hawaii inmate at a mainland facility wrote to the PSD and requested permission to open an individual savings account where he was incarcerated. He complained to our office when the PSD failed to respond to his request.

According to PSD policies and procedures, inmates are allowed to deposit their funds in restricted individual savings accounts in a private financial institution with the approval of the warden. The inmates earn interest on their money in these savings accounts, but not on funds held in a facility’s trust account.

In the contract between the PSD and this particular mainland correctional facility, the facility is required to manage inmate accounts in accordance with applicable State of Hawaii provisions. Since inmates incarcerated in Hawaii correctional facilities are allowed to open individual savings accounts, it appeared that the mainland correctional facility must also afford its Hawaii inmates the same privilege.

As the Halawa Correctional Facility (HCF) monitored the contract with the subject mainland correctional facility, we contacted the HCF staff member who was assigned to respond to the complainant’s request. She reported that she was uncertain as to whether the mainland correctional facility was required to make available such individual savings accounts to Hawaii inmates; however, she was still researching the matter.

We then contacted an HCF fiscal officer who was familiar with the policies and procedures pertaining to inmate accounts. The fiscal officer reported that she asked two major financial institutions in Hawaii whether they would establish accounts for Hawaii inmates incarcerated on the mainland, but the financial institutions declined to open such accounts. She also contacted a representative from the mainland correctional facility and provided him with copies of the pertinent PSD policies and procedures.

Subsequently, the mainland facility made arrangements for Hawaii inmates to open accounts with a financial institution in its area, and at least one inmate had already taken advantage of the option. The complainant could therefore arrange through the mainland facility to establish an individual savings account.

(02-1940) Found guilty of multiple charges for one assault. An inmate complained that he was found guilty by an Adjustment Committee (AC) of four charges of misconduct, including two assault charges, stemming from an incident that occurred while he was on furlough. The inmate admitted to striking his girlfriend once, but disagreed with being found guilty of multiple misconduct charges.

In our investigation, we reviewed the reports by the facility staff and the police officer who arrested the complainant and investigated the case. The reports indicated that the complainant struck and kicked his girlfriend several times and that she was treated at a hospital emergency room for facial contusions. We concluded that there was a reasonable basis for finding the inmate guilty of three of the four charges, including an assault charge, but questioned the guilty finding with regard to the second assault charge.

The Department of Public Safety rates the severity of inmate rule violations as greatest, high, moderate, low moderate, and minor. The complainant was found guilty of a violation of greatest severity for assaulting a person with or without a dangerous instrument and causing bodily injury. He was also found guilty of a violation of high severity for assaulting a person without a dangerous instrument.

Since the victim required medical treatment, we concluded that she sustained bodily injury and that the greatest severity misconduct was appropriate. However, the high severity misconduct, which was based on the same assault, seemed duplicative.

We discussed our concerns with the chairperson of the AC and recommended that the guilty finding on the high severity misconduct be expunged. The chairperson accepted our recommendation and amended the AC’s disposition to find the inmate not guilty of the lesser of the two assault charges. A memorandum was sent to the inmate to notify him of the amended disposition.

(02-3477) Lack of prior notice of parole revocation hearing. A parolee who was recommitted to prison on a parole violation charge complained that he did not receive prior notice of his parole revocation hearing, as he was only informed of the hearing on the day it was held. He claimed that because of the lack of adequate prior notice, he was unable to secure representation at the hearing by an attorney of his choice.

We noted that Section 706‑670, Hawaii Revised Statutes, required the Hawaii Paroling Authority (HPA) to hold a hearing within 60 days of a parolee’s recommitment to determine whether parole should be revoked and to provide the parolee “reasonable notice” of the alleged grounds for revocation of parole. Section 23‑700‑44 of the HPA rules defined “reasonable notice” more specifically and stated in part:

Revocation of parole hearing; procedure. (a) The Authority shall serve a written notice to the parolee of a parole revocation hearing no later than seven days prior to the hearing. . . . (Emphasis added.)

The HPA initially reported to us that the parolee had received a written notice of the hearing more than seven days prior to the hearing. We requested a copy of the notice, but the HPA later informed us that it was unable to locate a copy. As a result, the HPA decided to grant the inmate a new hearing, with prior notice of the hearing to be provided as required by its rules.

We informed the inmate of the corrective action to be taken by the HPA.

(02-2779) and (02-4004) General excise tax return and payment deemed tardy. A taxpayer complained that the Department of Taxation sent her a notice of late filing of her general excise tax return and payment for September 2001, resulting in a penalty and interest assessment. The taxpayer contended that her return and payment were not late as they were mailed on the due date of October 31, 2001, a Wednesday, pursuant to her long-standing practice of having her return and payment picked up by her messenger service for mailing on the last day of postal service of the month in which they were due.

The taxes levied hereunder shall be payable in monthly installments on or before the last day of the calendar month following the month in which they accrue. The taxpayer shall, on or before the last day of the calendar month following the month in which the taxes accrue, make out and sign a return of the installment of tax for which the taxpayer is liable for the preceding month and transmit the same, together with a remittance, in the form required by section 237‑31, for the amount of the tax, to the office of the department of taxation in the appropriate district hereinafter designated. (Emphasis added.)

Thus, the taxpayer’s general excise tax return and payment for September were due on or before October 31.

(a) Any report, claim, tax return, statement, or other document required or authorized to be filed with or any payment made to the State which is:

(1) Transmitted through the United States mail, shall be deemed filed and received by the State on the date shown by the post office cancellation mark stamped upon the envelope or other appropriate wrapper containing it; . . . (Emphasis added.)

Thus, the department was required to consider, as the date of filing and payment, the postmark date on the envelope containing the taxpayer’s return and payment.

We inquired with the department and learned that upon receipt, general excise tax returns are stacked and date-stamped according to the postmark dates on the envelopes. The department located the taxpayer’s return and noted that it had a date stamp of November 1, which would indicate the return was postmarked on that date despite the taxpayer’s contention that her return was mailed on October 31. The department informed us that because of the collective bulkiness of the envelopes in which the returns are mailed, the envelopes are not retained. Thus, it was not possible to check the envelope to resolve the discrepancy between the date the department stamped on the taxpayer’s return and the date the taxpayer said her return was mailed.

The department acknowledged, however, that due to human error a return could be placed in the wrong stack of returns and thereby receive a wrong date stamp. In consideration of the taxpayer’s excellent history of filing timely general excise tax returns and payments, the department decided to treat the taxpayer’s September return as being timely filed and waived the penalty and interest assessment. The department documented the corrective action taken in a letter to the taxpayer.

A few months later, the taxpayer complained that the department sent her another notice of late filing of general excise tax return and payment. This time, the late return and payment were for January 2002, which were due on February 28, 2002. We contacted the department, which located the taxpayer’s return and reported that it had a date stamp of March 1, 2002. The department again agreed to waive the assessment of penalty and interest, but suggested that henceforth the taxpayer should have her returns and payments picked up by her messenger service for mailing earlier than on the last day of postal service for the month.

We informed the taxpayer that penalty and interest would again be waived, and she agreed to henceforth have her messenger service mail her returns and payments earlier in the month.

(02-2957) Delay in receipt of driver education instructor certificate. In order to serve as a driver education instructor, a person must obtain certification as having met the requirements established by the Department of Transportation (DOT). The complainant applied for an instructor certificate in May. She did not receive a response, so she called the DOT in August. The DOT told her that it misplaced her fingerprint document and asked her to resubmit it. After she complied, she was told in September that it takes awhile to receive the results of the fingerprint check from Washington. After having received no further response, she called us in January.

We contacted the DOT, which checked and found that two files were mistakenly created for the complainant. One file was in her maiden name and contained her fingerprint and criminal history documents. The other file was in her married name and contained her application.

The DOT confirmed that between the two files, the required documents had been received and the complainant’s instructor certificate would be prepared within a week. We informed the complainant of the mix‑up and told her that her certificate was forthcoming.

(02-2553) Resident status for tuition purposes in the University of Hawaii system. A student from Nebraska who was attending the University of Hawaii at Hilo (UHH) questioned the criteria to qualify for Hawaii resident tuition rates. Although she had been in Hawaii for 13 months and attended the UHH on a full‑time basis during the two preceding semesters, she did not qualify for resident tuition for the 2001 Fall semester. Pursuant to advice she received from UHH, in order to qualify for resident tuition after the 2001 Fall semester, she enrolled for only five credits in the 2001 Fall semester.

We reviewed Chapter 304, Hawaii Revised Statutes, titled “University of Hawaii.” The law required the University of Hawaii (UH) Board of Regents to adopt rules defining residence for tuition purposes, provided that the basic rule shall be that: (1) a student shall qualify for resident tuition only if the adult student or the student’s parents, in the case of a minor student, have been bona fide residents of Hawaii for at least 12 consecutive months; and (2) the student has not been claimed as a dependent for tax purposes by the student’s nonresident parents or guardians for at least 12 months preceding the student’s first day of instruction in the UH system.

We then reviewed Title 20, Chapter 4, Hawaii Administrative Rules, titled “Determination of Residency as Applied to Tuition Payments and Admission.” The rules contained factors that would be considered indicia of residence, with no single index considered to be decisive. Primary indicia included voting or registering to vote in Hawaii and filing of Hawaii resident income tax. Secondary indicia included ownership or continuous rental on a lease basis of residential property; operating a business or holding employment; and the presence of spouse, children, or other close relatives in Hawaii. The complainant informed us that she never voted in Hawaii nor filed a Hawaii income tax return, but she was employed and planned to file a Hawaii tax return in the coming year. We did not learn whether she rented her residence on a lease basis or had any relatives in Hawaii.

More important in the complainant’s case were the rules that stated that presence in Hawaii primarily to attend an institution of higher learning shall not create resident status, and a nonresident student shall be presumed to be in Hawaii primarily to attend an institution of higher learning. Thus, the 13 months during which the complainant was a full-time student at the UHH were not counted in meeting the basic requirement of being a bona fide Hawaii resident for 12 consecutive months.

We found that a few years ago, the former UH president issued a memorandum to residency officers on all UH campuses to clarify the application of the rules. In part, the former president stated that those who are financially self-supporting and attend the UH less than half time may be classified as residents for tuition purposes if they provide satisfactory evidence of having lived in Hawaii for 12 consecutive months.

We informed the complainant that based upon our review of the law and rules, we believed the determination that she did not qualify for resident tuition was correct. Since a full-time undergraduate course load was deemed to be 12 credits or more, it appeared that she was correctly advised by UHH that her enrollment for five credits in the 2001 Fall semester constituted less than half‑time attendance and would be a qualifying index toward meeting the 12‑month residency requirement.

(02-0219) Disqualified for Section 8 Rental Assistance Program. An ex-inmate complained that she was deemed ineligible for the Section 8 program administered by the City and County of Honolulu (C&C) because she was convicted of manufacturing or producing methamphetamine. She stated that she was never convicted of such an offense, although she did have other drug‑related convictions. She had since successfully completed and been discharged from parole supervision, was attending college while maintaining employment, and felt that her ineligibility for the Section 8 program was an obstacle to her successful rehabilitation.

We contacted a Section 8 program supervisor and inquired about the basis for the complainant’s ineligibility. The supervisor informed us that the program received Federal funding and therefore must comply with certain Federal regulations.

We reviewed applicable sections of the Code of Federal Regulations (CFR) and noted in particular that Section 982.553(a)(1)(ii)(C) required a local housing authority, such as the C&C Section 8 program, to prohibit admission to the program by a household if any household member “has ever been convicted . . . for manufacture or production of methamphetamine on the premises of federally assisted housing.” (Emphasis added.)

We inquired with the Hawaii Paroling Authority (HPA), and learned that the complainant was never convicted of any offense for producing or manufacturing methamphetamine, whether on or off the premises of federally assisted housing.

We then informed the Section 8 supervisor of the information we obtained from the HPA and suggested that the Section 8 staff verify that information with the HPA. After the Section 8 staff obtained such verification from the HPA, it reversed its decision and found the complainant to be eligible for the Section 8 program. The complainant was pleased with her eligibility.

We also pointed out to the Section 8 supervisor that according to the CFR provision, a person would be prohibited from program admission only if the conviction for the manufacture or production of methamphetamine occurred on the premises of federally assisted housing. The supervisor informed us that the C&C was advised by the U.S. Department of Housing and Urban Development that it was within the local authority’s discretionary authority to enact a stricter provision and prohibit admission even if the criminal activity did not occur on the premises of federally assisted housing. The supervisor informed us that the C&C intended to adopt a rule whereby admission would be prohibited for production or manufacture of methamphetamine regardless of where the offense occurred. However, until such a rule was formally adopted, the C&C would prohibit admission only if the offense occurred on federally assisted housing premises.

(02-3528) Outdated recorded message about age requirement for driving instruction permit. The parent of a 15‑year‑old youth complained that the recorded message on the 24‑hour line for driver license information was incorrect. Based on the recording, which indicated that an applicant must be 15 years old, the complainant took her son to a driver licensing station to apply for a temporary instruction permit. However, they were informed that an applicant must be at least 15 years and 6 months old. The Division of Motor Vehicles, Licensing and Permits (MVLP), Department of Customer Services, which administers the driver license program for the City and County of Honolulu, informed the complainant that the recording reflected outdated information about the eligible age, but it would be changed. About three weeks later, the recording still had not been changed, so she contacted our office.

In our investigation we learned that the Legislature was concerned that youthful motor vehicle operators, especially teenagers, were involved in an inordinately high number of traffic accidents resulting in a disproportionately greater number of deaths. Furthermore, traffic accident fatalities were the number one cause of death for persons between the ages of 16 and 19. Therefore, in response to increasing concern in the community, the Legislature enacted Act 175, 1999 Session Laws of Hawaii, to amend the driver licensing law by raising the age at which a person could obtain a temporary instruction permit from 15 years to 15 years and 6 months; by raising the minimum age to obtain a driver’s license from 15 years to 16 years; and by establishing a requirement that persons under the age of 18 complete a driver education program and a behind‑the‑wheel driver training course before obtaining a license.

Act 175 became law on July 1, 1999, but its provisions did not take effect until January 1, 2001. The complainant contacted us in February 2002, over a year after the change went into effect. Yet, the MVLP still had not changed the telephone recording.

Upon our inquiry, the staff person responsible for correcting the recording apologized and made the necessary changes within a day.